186
Stevens, J., dissenting
have become parole ineligible at some later date, but at the exact moment the jury was deliberating that was not yet so. The trouble is, that is not a fact that distinguishes Ramdass' case from Simmons'.
In Simmons, the relevant parole statute was S. C. Code Ann. § 24-21-640 (Supp. 1993). See Simmons, 512 U. S., at 176 (O'Connor, J., concurring in judgment) (citing South Carolina parole law); see also id., at 156 (plurality opinion) (same).5 Under that statute, it was the South Carolina Board of Probation, Parole, and Pardon Services that determined a defendant's parole eligibility—and that determination would come after the sentencing phase. Then-current South Carolina case law unambiguously stated that the eligibility determination would not be made at trial, but by the parole board.6 Moreover, the statute required the parole board to find that the defendant's prior convictions were not committed "pursuant to one continuous course of conduct," and it was by no means certain that the board would ultimately reach that conclusion. In fact, in Simmons the State of South Carolina steadfastly maintained that Simmons was not truly parole ineligible at the time of his sentencing
5 That statute read in part: "The board must not grant parole nor is parole authorized, to any prisoner serving a sentence for a second or subsequent conviction, following a separate sentencing for a prior conviction, for violent crimes as defined in Section 16-1-60. Provided that where more than one included offense shall be committed within a one-day period or pursuant to one continuous course of conduct, such multiple offenses must be treated for purposes of this section as one offense."
6 See, e. g., State v. McKay, 300 S. C. 113, 115, 386 S. E. 2d 623, 623-624 (1989).
It is true, as the plurality points out, ante, at 167, that in Simmons the defendant did have an entry of judgment. But, under the plurality's reasoning, the issue is whether the defendant is parole ineligible at the time of sentencing, not why he is or is not ineligible. Thus, whether the defendant is parole eligible at that time because he has no entry of judgment or because the parole board has not yet met is hardly relevant. It is a distinction, but not a material one.
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